TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection – respondent contended that applicant resigned and was not dismissed – applicant employed as Commercial Insurance Broker – as a part of the 2015 performance review cycle respondent proposed to reduce applicant’s future remuneration – applicant indicated in an email to business connections that he was planning to leave respondent – meeting between parties where recollections of the conversation differed significantly – whether applicant resigned – applicant denied ever having tendered his resignation orally or in writing and claimed termination was at initiative of respondent – Commission of view that resignations do not need to be in writing to be effective – Commission determined termination of applicant’s employment was at his own initiative and not of the respondent – applicant not forced to resign because of conduct, or course of conduct, engaged in by employer – applicant not dismissed for purposes of s.385 of FW Act – application dismissed. Bonser v Nexus (Aust) P/L t/a Nexus Risk Services
July 15, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.329, 332, 394 Fair Work Act 2009 – applicant lodged unfair dismissal application – respondent submitted reason for dismissal was genuine redundancy and that applicant not protected from unfair dismissal as she earned more than the high income threshold – whether applicant’s annual rate of earnings less than the high income threshold – applicant not covered by a modern award or enterprise agreement – applicant provided with motor vehicle with a nominal value attributed to increase in salary – soon after parties agreed substituting company motor vehicle with car allowance – respondent changed motor vehicle policy due to Fringe Benefits Tax liability – in lieu of company vehicle, applicant given option of either $20,000 allowance or to purchase company vehicle – applicant accepted allowance – applicant submitted car allowance was an expense allowance to compensate her for using her own vehicle in connection with business-related purposes and not part of her earnings – respondent submitted the allowance should not be viewed as a reimbursement, but rather as an allowance in lieu of the benefit of a company provided vehicle that was part of applicant’s contract – Commission not persuaded car allowance was reimbursement – applicant’s contract of employment already provided for reimbursement of travel expenses and entitlement – found applicant’s salary was increased – was provided with a company motor vehicle – entitlement to car allowance was unconditional – no suggestion it was not paid at start or end of employment period – total value of car allowance is to be included in applicant’s earnings – earnings amounted to $140,000 per annum – high income threshold exceeded – applicant not protected from unfair dismissal – application dismissed. Ni Mhorain v UON P/L
July 15, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as electrician – throughout the conduct of the proceeding applicant alleged different dates of and reasons for his termination – an incident occurred at the premises of a customer, the customer alleged the applicant performed a ‘burn out’ on his premises – respondent showed applicant the photos sent from a customer which applicant disputed – respondent suggested they would discuss the matter the next day so conversation did not get heated – applicant turned up to work the next day however he did not complete any jobs he was assigned and did not return to work after that day – respondent submitted that applicant abandoned his employment as he did not present for work from 18 December 2015 – further submitted there was no termination at the initiative of the employer as the resignation was voluntary – in the alternative the respondent submitted there was a valid reason for termination as applicant used private work tools in breach of company policy – Commission not satisfied email sent by respondent on same day as the incident compelled applicant to resign from his employment or treat his employment as terminated – found there was no dismissal at the initiative of the employer – not necessary to determine whether dismissal was harsh, unjust or unreasonable – application dismissed. Wallis v Hallsons t/a Megals
July 15, 2016
MODERN AWARDS – 4 yearly review – ss.136, 142, 156 Fair Work Act 2009 – Full Bench – decision issued on 24 December 2015 (the December 2015 decision) which dealt with a number of proposed variations to the Pastoral Award 2010 that had arisen in the context of the Award Stage of the 4 yearly review of modern awards [[2015] FWCFB 8810] – remaining unresolved issue from the December 2015 decision concerned a claim by the Australian Workers’ Union (AWU) dealing with ‘learner shearers’ – issue in contention turns on the proper construction of ss.139 and 142 of FW Act – Full Bench satisfied the proposed definition of ‘learner shearer’ was a term about a skill based classification – Bowker considered – satisfied the variation the Full Bench proposed to make was justified by work value reasons; was necessary to meet the modern awards objective; and would ‘establish… a safety net of fair minimum wages’ as required by the minimum wages objective – Pastoral Award 2010 varied. 4 yearly review of modern awards-Pastoral Award 2010
July 15, 2016
MODERN AWARDS – dispute about matter arising under award – jurisdiction – ss.65, 593, 739 Fair Work Act 2009 – application to deal with dispute – applicant requested home based work arrangement (HBWA) pursuant to flexible working arrangement provision of respondent’s Review of Actions Policy (Policy) – applicant sought to work from Netherlands for six months in order to be with pregnant wife – respondent refused on reasonable business grounds – applicant covered by Public Service Enterprise Award 2015 – Commission found dispute resolution clause applies to matters under award or NES – HBWA not a matter under award – award did not give Commission power to deal with NES matters – in any event applicant exceeds high income threshold and award did not apply – dispute resolution procedure under applicant’s contract of employment not applicable as restricted to disputes arising under the contract – contract silent on HBWA and specifically excludes policies – Commission found no term of s.738 of FW Act applied and therefore Commission had no power to deal with dispute under s.739 – Commission found it had no power to deal with dispute under s.65 as applicant not yet a parent – Commission also found it had no power under respondent’s Policy for three reasons – application not properly made – policies specifically excluded in applicant’s employment contract and – Policy not an agreement but an internal instrument to reflect best business practice – applicant requested hearing remain private due to potential negative impact on career and personal nature of request – Commission found substantive issue of decision a legal question to be determined – would have no negative effect on applicant’s career – transparency in interests of ‘open justice’ – request refused – application dismissed. Brown v National Offshore Petroleum Safety and Environmental Management Authority t/a NOPSEMA
July 15, 2016
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application for a majority support determination in relation to employees of MPS performing warehousing functions at its Oakleigh facility – petition of relevant employees was signed by 18 out of 30 employees to prove that a majority of employees want to bargain – Commission satisfied a majority of employees want to bargain – respondent had not yet agreed to bargain, or initiated bargaining, for the proposed agreement – whether proposed group of employees was fairly chosen – NUW’s contention was that the group was geographically, operationally and organisationally distinct – MPS submitted group of employees was not fairly chosen as it was not organisationally or operationally distinct – Cimeco considered – a group which is geographically distinct but not organisationally or operationally distinct could be fairly chosen [NUW v Cotton On] – Commission concluded the chosen group was fairly chosen – reasonable that Commission make the majority support determination sought by the NUW – MPS must now take all reasonable steps to issue a notice of employee representational rights to each relevant employee as required by ss.173 and 174 of FW Act. National Union of Workers v Medication Packaging Systems (Australia) P/L
July 15, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for extension of time – application filed one day outside 21 day time limit – applicant submitted three reasons for late filing – Commission found assault on day before dismissal not a reason for delay – not satisfied that contention regarding advice from Commission was made out – satisfied that where applicant diagnosed as suffering from a major depressive episode over a period of time which included whole of the period from the date of dismissal to date of filing the unfair dismissal application provided a sound and sufficient reason for delay – Commission weighed factors in favour of extension of time against factors against and found exceptional circumstances which warranted exercising discretion to grant extension of time. Hart v Truss Guard Rail P/L
July 15, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – time off instead of payment for overtime – finalisation of plain language model term – modern awards need to be easily understood by those who are covered by them – ‘time off instead of payment for overtime’ more clearly conveys the concept dealt with in the model term than ‘time off in lieu of payment for overtime’ – plain language model term set out. 4 yearly review of modern awards-Award flexibility
